Citation NR: 9712498
Decision Date: 04/09/97 Archive Date: 04/18/97
DOCKET NO. 93-08 742 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Detroit,
Michigan
THE ISSUES
1. Entitlement to a rating greater than 10 percent disabling
for left shoulder impingement syndrome with calcifying
tendinitis, degenerative joint disease and rotator cuff tear.
2. Entitlement to a rating greater than 10 percent each for
bilateral foot disability.
3. Entitlement to an effective date earlier than October 22,
1992, for a 10 percent evaluation each for bilateral foot
disability.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
Todd A. Sinkins, Associate Counsel
INTRODUCTION
The appellant served on active duty from October 1984 to
August 1987. This action comes to the Board of Veterans’
Appeals (the Board) from an April 1991 rating decision of the
Department of Veterans Affairs (VA) Detroit Regional Office
(RO) which granted service connection and assigned a
noncompensable evaluation for impingement syndrome of the
left shoulder with degenerative joint disease, and a July
1995 RO decision which granted a 10 percent evaluation each
for bilateral foot disability, effective from July 5, 1995.
In an August 1995 RO decision, the effective date for the 10
percent evaluation for the appellant’s left and right hallux
valgus was changed to October 22, 1992, the date of receipt
of such claim.
With regard to the left shoulder disability, a 10 percent
evaluation was granted by June 1992 RO decision, effective
from August 6, 1987. On a claim for an original or increased
rating, the appellant will generally be presumed to be
seeking the maximum benefit allowed by law; thus, it follows
that such claim remains in controversy where less than the
maximum available benefit is awarded. AB v. Brown, 6
Vet.App. 35 (1993). Accordingly, the issue currently before
the Board is entitlement to a rating greater than 10 percent
disabling for impingement syndrome of the left shoulder with
calcifying tendinitis, degenerative joint disease and rotator
cuff tear.
CONTENTIONS OF APPELLANT ON APPEAL
The appellant contends that he is entitled to a rating
greater than 10 percent disabling for his left shoulder
disability because it is extremely painful when he raises his
left arm above shoulder level, there is grinding on movement,
and left arm numbness associated therewith. He contends he
is entitled to an evaluation greater than 10 percent each for
his bilateral foot disability because he experiences pain
when involved in any weight-bearing activity. He further
contends that he is entitled to an earlier effective date for
his 10 percent evaluation for his bilateral foot disability
because he has been experiencing bilateral foot symptoms
since separation from service in August 1987.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1995), has reviewed and considered
all of the evidence and material of record in the appellant’s
claims file. Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that the evidence supports an
increased evaluation of 20 percent disabling for left
shoulder impingement syndrome with calcifying tendinitis,
degenerative joint disease and rotator cuff tear and an
earlier effective date of October 2, 1992, for the 10 percent
evaluation assigned both his left and right hallux valgus,
but the preponderance of the evidence is against an
evaluation greater than 10 percent disabling for each such
foot disability.
FINDINGS OF FACT
1. All evidence necessary for an equitable disposition of
the appellant’s claim has been developed.
2. The appellant’s left shoulder impingement syndrome with
calcifying tendinitis, degenerative joint disease and rotator
cuff tear is currently manifested by pain and weakness that
limit the functional range of left arm motion to the shoulder
level.
3. His bilateral foot disability is currently manifested by
severe pain involving the right first metatarsophalangeal
joint on weight bearing, extreme pain associated with
decreased range of motion of the bilateral first
metatarsophalangeal joint, particularly on right great toe
plantar flexion, and mild hallux valgus deformity,
bilaterally, more pronounced on the left.
4. The RO received the appellant’s claim for a compensable
evaluation for bilateral foot disability on October 2, 1992.
5. The appellant did not submit evidence of an increase in
disability warranting a 10 percent evaluation for a bilateral
foot disability within a year prior to receipt of his claim
for increased evaluation on October 2, 1992.
CONCLUSIONS OF LAW
1. Resolving the benefit of the doubt in the appellant’s
favor, the criteria for a 20 percent rating for impingement
syndrome of the left shoulder with calcifying tendinitis,
degenerative joint disease and rotator cuff tear are met.
38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. 4.3, 4.10,
4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5024, 5201
(1996).
2. The criteria for an evaluation greater than 10 percent
disabling for a bilateral foot disability are not met. 38
U.S.C.A. §§ 1155, 5107(a); 38 C.F.R. § 4.71a, Diagnostic Code
5280.
3. The criteria for an effective date of October 2, 1992,
for a 10 percent evaluation for a bilateral foot disability,
have been met. 38 U.S.C.A. §§ 5107, 5110; 38 C.F.R. §
3.400(o)(2).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Initially, the Board finds that the appellant’s claims are
well grounded within the meaning of 38 U.S.C.A. § 5107(a);
that is, plausible claims have been presented. Murphy v.
Derwinski, 1 Vet.App. 78 (1990). In general, an allegation
of increased disability is sufficient to establish a well-
grounded claim seeking an increased rating. Proscelle v.
Derwinski, 2 Vet.App. 629 (1992). The Board is also
satisfied that all relevant facts have been properly
developed to their full extent and that the VA has met its
duty to assist. White v. Derwinski, 1 Vet.App. 519 (1991);
Godwin v. Derwinski, 1 Vet.App. 419 (1991).
Factual Background
Following his separation from service, the appellant was
afforded a VA orthopedic examination of his left shoulder in
October 1987. At that time, his range of motion was 0 to 180
degrees flexion and abduction, and 0 to 90 degrees of
internal and external rotation. X-ray studies of the left
shoulder were essentially negative.
He again had a VA examination of the left shoulder in July
1990, at which he complained of left shoulder pain,
particularly on motion of the left arm, and a numbness and
tingling sensation in his arms and legs. The examiner noted
that the appellant could abduct his left shoulder 90 degrees,
but also noted that a grating sensation was both felt and
heard during such abduction. Internal and external rotation
were both from 0 to 90 degrees. Forward elevation was to 90
degrees. The examiner noted good biceps and triceps muscle
development. X-ray studies showed that the left shoulder
joint appeared to be within normal limits, with no evidence
of recent displaced fracture or lystic lesions in the bone.
He again had a VA examination of his left shoulder in
December 1990, at which he complained of pain in his left
shoulder when the weather changes or when working on a
regular basis. He also complained of numbness in the arms at
times, and that he could not raise his left arm above the
shoulder level without pain. At that time, his range of
motion was 0 to 180 degrees flexion and abduction, and 0 to
90 degrees of internal and external rotation. The examiner
noted crepitus in the left shoulder on abduction past 90
degrees. X-ray studies of the left shoulder revealed very
minimal degenerative joint disease involving the
acromioclavicular joint where there was minimal hypertrophic
marginal lipping of the articulating component bones of the
acromioclavicular joint.
The appellant testified at his November 1991 personal hearing
that excessive work resulted in a loss of left shoulder
motion. He stated that half of the time, he can not raise
his left arm above the shoulder level, and that there was
grinding in the shoulder. He also testified that he
experiences agonizing pain in his shoulder when the weather
changes. In addition, he testified that at times, he
experiences a sensation that feels like his shoulder is
pinching a nerve and that his arm is getting weak. He
further testified that 70 percent of the time that he works,
his arm hurts, and that movement is restricted to the
shoulder level. Also, he testified that he often has pain
without movement and sometimes gets numbness in his fingers.
He again had a VA examination of his left shoulder in January
1992, at which he complained of left shoulder pain, decreased
range of left shoulder motion, and numbness in his
fingertips. The acromioclavicular joints were noted as
symmetrical. Range of left shoulder motion was at least 0 to
160 degrees flexion, at least 0 to 140 degrees abduction, and
0 to 80 degrees of internal and external rotation. The
examiner reported that the appellant was uncooperative and
that the range of motion studies were unreliable. A
neurological examination revealed that all muscle groups
exhibited normal strength, with tone and coordination intact.
Reflexes were symmetric and sensory exam was intact. He had
normal EMG and nerve conduction studies of the left arm. X-
ray studies of the left shoulder revealed calcification
adjacent to the greater tuberosity, which is a finding
associated with chronic calcifying tendonitis or bursitis.
On October 2, 1992, the RO received an informal claim for an
increased evaluation for a bilateral foot disability.
The appellant received a VA medical examination of the left
shoulder in July 1995, at which the examiner noted that he
reviewed the entire claims folder and that the appellant
claimed to be right handed. The examiner also reported that
the appellant did not currently have any left shoulder
symptoms, but that when he raised his arm past horizontal, he
had a pressure sensation in the top of the acromion, and had
no night pain, no instability, and no apprehension. The
appellant reported that symptoms go away at night, and the
examiner noted no evidence of loss of function. The
appellant complained of left shoulder pain when he lifts
heavy objects, and complained of radiculopathy. Range of
left shoulder motion was 0 to 155 degrees flexion, 0 to 165
degrees abduction, 0 to 30 degrees extension, and 0 to 80
degrees of internal and external rotation. The examiner
noted a prominent acromioclavicular joint with grating on
motion of the left subacromial area. Neurovascular status
and glenoid labrum were normal. X-ray studies showed a
normal humeral head, glenoid, acromioclavicular joint and
normal appearing left shoulder without acromioclavicular
separation. Very minimal degenerative joint disease
involving the acromioclavicular joint was noted. The VA
examiner noted that the appellant would not tolerate an MRI
study.
Also in July 1995, the appellant had a VA examination of his
feet. He complained of severe pain involving the right first
metatarsophalangeal joint when weight bearing. Dorsalis
pedis and posterior tibial pulses were 2 + bilaterally and
capillary free time was found to be within normal limits.
There was no edema, but the examiner noted dry and scaly skin
in a moccasin distribution. Calluses were noted at the first
metatarsophalangeal joint in the second left. His nails were
mycotic. The VA examiner noted healed surgical scars on the
dorsal aspect of the first metatarsophalangeal joint
bilaterally and the second right metatarsophalangeal joint.
There was extreme pain associated with decreased range of
motion of the right first metatarsophalangeal joint. The
pain was particularly exquisite when the appellant attempted
to place his right great toe into plantar flexion. The
examiner also noted a mild hallus valgus deformity
bilaterally, which was more pronounced on the left. X-ray
studies showed a short first metatarsal bilaterally, more
noticeable on the left, as well as postoperative changes of
the first metatarsal. The arch was reported to be well
maintained, and the gait was described as antalgic.
The appellant most recently had a VA examination of his left
shoulder in April 1996, at which he complained of off-and-on
left shoulder aching, particularly after usage, and periodic
grating on lifting his arm over his head. He did not use any
braces or physical support for his left shoulder. The
examiner noted no prominence of the acromioclavicular joint.
Examination of the left shoulder showed range of motion to
145 degrees of flexion, to 150 degrees of abduction, to 85
degrees of internal and external rotation, and to 20 degrees
of extension. The VA examiner noted no signs of apprehension
deformity, but did note a slight grating sensation on the
left in the subacromial region. The left shoulder was
stable. X-ray studies of the left shoulder showed no
abnormality of the clavicle, acromion, acromioclavicular
joint, and glenoid. The humeral head, scapula, chest wall
and humerus were also noted as normal. In the inferior
border of a congenitally grade type III scromion, there
appeared to be a large osteophyte that was unrelated to any
injury, trauma or deformity in service. April 1996 VA EMG
and Nerve Conduction Velocity testing were both normal for
the bilateral upper extremities. X-ray studies of the feet
showed bilateral minimal hallux valgus, more so on the left,
with evidence of bunionectomy on both sides. There was also
minimal degenerative joint disease involving the first
metatarsophalangeal joints. A May 1996 MRI study of the left
shoulder revealed a rotator cuff tear with slight retraction,
degenerative change of the acromioclavicular joint with
impingement, and the possibility of ganglion cysts in the
region of supraspinatus musculotendinous junction.
In May 1996, N. Patel, M.D., noted that he treated the
appellant following complaints of intermittent pain in the
left shoulder and pain following use of the left arm for
heavy work. Physical examination revealed no obvious
deformity or swelling in the left shoulder, with no muscle
wasting around the left shoulder. On palpation, there was
tenderness anteriorly over the tendon of the long head of the
biceps, as well as the subacromial region. Passive range of
motion was full, but caused pain and crepitation in the
subacromial region on about 70 to 130 degrees forward flexion
and abduction. Strength of the shoulder muscles was grade 5
except on external rotation, which was grade 4 and limited
with pain.
Also in May 1996, J. Wentzien, P.T., noted that the appellant
was having problems lifting anything over 5 pounds over his
head. She noted that left shoulder pain was interfering with
the appellant’s activities of daily living, including self
grooming, dressing, housework, and any activity requiring
shoulder flexion or abduction over 90 degrees. She measured
left shoulder active range of motion as 120 degrees flexion
with pain in the superior shoulder and 85 degrees abduction
with significant pain. Supraspinatus range of motion with
internal rotation of the shoulder and abduction measured at
90 degrees on the left with significant pain, and external
rotation measured at 55 degrees with the shoulder abducted at
10 degrees and 45 degrees with the shoulder abducted at 35
degrees. Passive range of motion was 140 degrees flexion, 90
degrees abduction with pain, and external rotation of 65
degrees. Left shoulder muscle strength was less than full
with pain. In May 1996, J. Ryan, M.D., noted the appellant
reported a shooting-type of pain in the left shoulder blade.
In May 1996, R. P. Rubin, M.D., noted the appellant
complained of pain in the first two toes bilaterally.
Physical examination revealed cicatrix present in the first
metatarsophalangeal joint bilaterally and the second
metatarsophalangeal joint on the right, with other
superficial lesions. The digits were noted as contracted 2
through 5 bilaterally with painful, limited range of motion
of the first metatarsophalangeal joint, bilaterally. His
nails were mycotic and his skin had hyperhidrosis.
Increased Evaluations
Disability evaluations are determined by application of a
schedule of ratings based on average impairment in earning
capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4.
Consideration must be given to the ability of the veteran to
function under the ordinary conditions of daily life and
weakness is recognized as productive of a functional
impairment. 38 C.F.R. §§ 4.10, 4.40.
When evaluating a disability, any reasonable doubt regarding
the degree of disability is resolved in favor of the
claimant. 38 C.F.R. § 4.3. If there is a question as to
which of two evaluations should apply, the higher rating is
assigned if the disability picture more nearly approximates
the criteria required for that rating. Otherwise, the lower
rating is assigned. 38 C.F.R. § 4.7.
Where entitlement to compensation has already been
established and an increase in the disability rating is at
issue, the present level of disability is of primary concern.
Although a rating specialist is directed to review the
recorded history of a disability in order to make a more
accurate evaluation, see 38 C.F.R. § 4.2, the regulations do
not give past medical reports precedence over current
findings. Francisco v. Brown, 7 Vet.App. 55 (1994).
It is recognized that disability of the musculoskeletal
system is primarily the inability, due to damage or an
infection in parts of the system, to perform the normal
working movements of the body with normal excursion,
strength, speed, coordination and endurance. Weakness is as
important as limitation of motion, and a part which becomes
painful on use must be regarded as seriously disabled. 38
C.F.R. § 4.40. An evaluation of the bones and joints
requires inquiry into permanent bone residuals and their
impact on the neighboring joints, especially those connected
with weight bearing, including any limitation of motion,
excess motion, weakness, fatigability, incoordination, pain
on movement, swelling, deformity, or atrophy. 38 C.F.R. §§
4.44, 4.45. Functional impairment due to pain must be
considered. 38 C.F.R. § 4.59.
The appellant’s left shoulder disability is currently rated
pursuant to 38 C.F.R. § 4.71a. When, however, the limitation
of motion of the specific joint or joints affected by
arthritis confirmed by X-ray studies is noncompensable under
the appropriate diagnostic codes, a rating of 10 percent
should be applied for each such major joint or group of minor
joints affected by limitation of motion. Limitation of
motion must be objectively confirmed by findings such as
swelling, muscle spasm, or satisfactory evidence of painful
motion. In the absence of limitation of motion, X-ray
evidence of arthritic involvement of 2 or more major joints
or 2 or more minor joints groups warrants a 10 percent
rating. X-ray evidence of arthritic involvement of 2 or more
major joints or 2 or more minor joints groups, with
occasional incapacitating exacerbations, warrants a 20
percent rating. 38 C.F.R. Part 4, Diagnostic Codes 5003 and
5024.
In addition, Diagnostic Code 5201 is applicable to the
appellant’s claim. A 20 percent evaluation is warranted if
there is limitation of motion of the arm at the shoulder
level. A 20 percent evaluation for the minor shoulder is
warranted if range of motion is limited to midway between the
side and shoulder level. A 30 percent evaluation is
warranted if range of motion is limited to 25 degrees from
the side. 38 C.F.R. Part 4, Diagnostic Code 5201.
In this case, the appellant clearly has pain when extending
his arm above shoulder level. In addition, his left shoulder
is demonstrably weak and he is unable to lift anything
greater than 5 pounds over his head. As a result, his left
shoulder range of motion is functionally limited by loss of
strength and pain to the shoulder level. Therefore,
resolving all benefit of the doubt in the appellant’s favor
the evidence in this case reflects that a 20 percent
evaluation for his left shoulder disability is warranted.
38 C.F.R. §§ 4.3, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic
Code 5201. However, an evaluation greater than 20 percent is
not warranted because left shoulder functionality and range
of motion of the left arm is up to the shoulder level. It is
not limited to 25 degrees from the side, which is required
for a 30 percent evaluation, which is the next highest
evaluation.
The appellant’s bilateral foot disability, hallux valgus, is
currently evaluated as 10 percent disabling for each foot
under 38 C.F.R. § 4.71a. Under Diagnostic Code 5280, a
maximum 10 percent evaluation is warranted for hallux valgus
of each foot when such condition is severe and equivalent to
amputation of the great toe, or which has required an
operation with surgical removal of the metatarsal head.
Therefore, in this case, the appellant is currently receiving
the maximum schedular evaluation available for bilateral
hallux valgus.
Effective Date Earlier than October 22, 1992, for a 10
Percent
Evaluation Each for Bilateral Foot Disability
Except as otherwise provided, the effective date of an award
of increased compensation shall be the earliest date as of
which it is factually ascertainable that an increase in
disability had occurred or the date of claim, whichever is
later. However, the effective date will be the date it is
factually ascertainable that an increase in disability had
occurred if a claim is received within 1 year of such date;
otherwise, the effective date will be not earlier than the
date of receipt of application therefor. 38 U.S.C.A. § 5110;
38 C.F.R. § 3.400(o)(2).
In this case, in its August 1995 rating decision, the RO
based the assignment of the current effective date, October
22, 1992, for a 10 percent evaluation for each foot
disability, hallux valgus, on the fact that the “implied”
claim was received on that date. However, while the RO
stated that the appellant’s claim for an increased evaluation
for his bilateral foot disability was received by the RO on
October 22, 1992, a review of the claims folder reveals that
the document accepted as an implied claim was actually
received by the RO on October 2, 1992. Thus, in order for
him to be entitled to an earlier effective date, prior to
October 22, 1992, for a 10 percent evaluation for his
bilateral foot disability, the appellant must establish
either that his claim was received by the RO prior to October
22, 1992, or that there was evidence of an increase in his
disability within a year prior to the receipt of the claim,
indicating that a 10 percent evaluation was warranted. The
appellant has established that his claim was received on
October 2, 1992; therefore, an effective date of October 2,
1992 is supported by the evidence of record. However, the
appellant has not submitted any medical or lay evidence that
his bilateral foot disability had increased to a level
warranting a 10 percent evaluation prior thereto. Indeed,
there is no evidence pertaining to his feet within a year of
October 2, 1992. Thus, the evidence supports the appellant’s
claim for a 10 percent evaluation effective technically on
October 2, 1992, for his service-connected bilateral foot
disability.
In view of the foregoing, the Board finds that the evidence
supports a 20 percent evaluation for impingement syndrome of
the left shoulder with calcifying tendinitis, degenerative
joint disease and rotator cuff tear, and supports an
effective date of October 2, 1992 for a 10 percent evaluation
for his hallux valgus disability of the right and left foot,
but the preponderance of the evidence is against the
appellant’s claim for an evaluation greater than 10 percent
disabling for his bilateral foot disability. 38 U.S.C.A.
§ 1155, 5110; 38 C.F.R. 3.400(o)(2), 4.3, 4.10, 4.40, 4.45,
4.59, 4.71a, Diagnostic Codes 5003, 5024, 5201, 5280. The
Board has also considered all other potentially applicable
provisions of 38 C.F.R. Parts 3 and 4, whether or not they
have been raised by the appellant, as required by Schafrath
v. Derwinski, 1 Vet.App. 589 (1991).
ORDER
A 20 percent evaluation for impingement syndrome of the left
shoulder with calcifying tendinitis, degenerative joint
disease and rotator cuff tear is granted.
An evaluation greater than 10 percent each for bilateral foot
disability is denied.
An earlier effective date for a 10 percent evaluation each
for bilateral foot disability, technically effective October
2, 1992, is granted.
J. F. GOUGH
Member, Board of Veterans' Appeals
The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, 741
(1994), permits a proceeding instituted before the Board to
be assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1995), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
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